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1835.

ROBINSON

GLEADOW.

A case, however, against the same defendant was tried in the Common Pleas about the same time, at the suit of one Addison (a), and it was not sent back, for, the court were clearly of opinion that the principal was not liable, although from both the cases it appeared that the foreign merchant, the principal, was present at the purchase and assortment of the goods, and had several meetings with the plaintiff; but the plaintiff made his election. At all events, that was a case as between the character of agent and principal; and I think the fallacy of the present argument has turned upon stating Hollingworth to be a mere agent, and that principals were discovered afterwards, although this is a case of joint authority. I think the other question—whether, if there was this joint contract (as I think there clearly was), the manner in which Tate dealt with Hollingworth afterwards released the other co-owners -does not arise. I cannot discover any evidence from which I can draw this conclusion: it is not to be found in any of the correspondence, or in any of the parol evidence. If, as was put to the jury, there had been any fraud, or if Tate knew that there had been any settlement of accounts between them and Hollingworth, that might have raised a different question. But it has been said, it was not fully put to the jury that Hollingworth was alone debited. The Chief Justice's attention was not called to that when summing up: if it had been, his lordship says he would have said something upon it; and we all know his readiness to adopt suggestions respectfully addressed to him, as (judging of the quarter whence it would have come) I am well assured such a suggestion would in this case have been. But this is no ground for a new trial; and I am satisfied, that, if the point had been made, it could not and ought not to have had any avail. When once the joint authority and joint benefit in this insurance are established, there is an end to the question. Indeed,

(a) Addison v. Gandasequi, 4 Taunt. 574.

1835.

ROBINSON

I am myself satisfied, that, although these four defendants were not general partners, and although one part-owner of a ship has not in that station a right to insure for the others, yet these defendants were special partners in the adventures in which these ships were engaged. I therefore think this rule must be discharged.

GLEADOW.

GASELEE, J.—On the former occasion the court thought proper to send the cause down again because the principal point in the cause, viz. whether or not there was a joint authority given to Hollingworth to insure for all the coowners, had been overlooked. On the second occasion the jury were satisfied of that fact. In the course of the argument it has been attempted to be shewn that Tate gave credit to Hollingworth alone, knowing at the time who the owners were. But I do not find that that is made out by the evidence. It is true that he appears to have been aware that Blundell was a part owner of some of the vessels, viz. the Clarkson and the Angerstein: but, as to the Dapper and the Freak, there was no evidence of ownership at all. Neither Tate, therefore, nor those who represent him, had any opportunity to make an election: and, considering the circumstances, I think that there cannot be said to have been any unreasonable delay. When a partnership is once made out, it requires very strong facts to absolve the liability of the parties.

VAUGHAN, J.-This is an application to the discretion of the court. If I could bring myself to think that there had been a failure of justice, notwithstanding this cause has been already twice tried, I would consent to its going down again. No additional evidence appears to have been adduced on the last occasion, though the two verdicts are conflicting. The rule was not moved for on the ground of the verdict being against evidence: but it has been attempted to be insinuated that the jury were misdirected.

1835.

ROBINSON

GLEADOW.

The action was brought to recover the amount of premiums of insurance upon certain ships of which the defendants were co-owners: and the real question is, whether the insurances were effected on the joint account and under the joint authority of the four defendants. On behalf of the defendants, the case has been argued on two groundsfirst, on the relation of principal and agent between Hol. lingworth and the other defendants- secondly, on the ground that the plaintiffs had so dealt with Hollingworth as to discharge the other defendants.-With regard to the case of Thomson v. Davenport, the authority of which it has been attempted to impugn, I have read it with great care, and I think the general proposition there laid down is well founded. I never heard it doubted. That part of the judgment of Bayley, J., to which our attention has been more particularly directed, does not refer to the main point in the cause. This, however, is not a case of principal and agent: the defendants were, as the jury have found, joint contractors. It is true that one part-owner has not as such any implied authority to insure for all. But, from the evidence given at the trial, I think the jury were well warranted in coming to the conclusion that Hollingworth had an express authority, which was acted upon and assented to by the other defendants. The remaining point involves something like a charge of misdirection not indeed an actual misdirection, but rather a sin of omission; for, it is said, the jury ought to have been directed to consider whether the credit had not been given to Hollingworth alone. There seems to me to be no ground whatever for this: that point was virtually involved in the for

It is absolutely impossible for a judge to call the attention of the jury expressly and explicitly to each minute subdivision of the points counsel may chuse to make in the course of a long argument: and, if possible, it would be useless and absurd. In the present case, it is true, , Hollingworth appears to have been the party originally

mer.

1835.

ROBINSON

GLEADOW.

debited. This however, is not conclusive evidence of an election on the part of Tate or the plaintiffs to take him as their debtor. There was no evidence that Tate was aware of the four defendants being joint owners of these vessels : neither can the plaintiffs, under the peculiar circumstances of this case, be held to have been guilty of laches. Upon the whole, it appears to me that the question was properly left to the jury, and that the conclusion they have arrived at was the correct one.

TINDAL, C. J.-I have little further to say than that I fully concur with the rest of the court as to what ought to be the fate of this rule. The case has been argued throughout as one of principal and agent: but that argument falls to the ground if the jury were warranted in coming to the conclusion that the insurances were effected upon a joint contract. It has been said that I ought to have left it to the jury in terms to say whether credit was not given to Hollingworth alone. That I would very readily have put to the jury, had it been suggested to me to be necessary. But, if I had done so, I should have left it with this observation, that there was no evidence whatever to shew that Tate knew who the other owners were, unless from one of the letters produced he might have had reason to suspect that Blundell was one of them. To enable a party under such circumstances to exercise a discretion, he must know who are chargeable. When once parties are fixed as joint contractors, Lodge v. Dicas, 5 B. & A. 611, shews how difficult it is for them to get rid of their liability by any collateral engagement between themselves. I think there is no ground for imputing laches to the plaintiffs, and that the issue between the parties has been properly decided.

Rule discharged.

1835.

Monday,

TWINING, Demandant, LOWNDES, Tenant.
June 10th.
In a writ of

THIS

was a writ of right. The tenant demurred to the right, the tenant demur.

count on the ground that it did not sufficiently shew how red to the count the demandant was heir. for a supposed deficiency in the statement of the descent.

R. V. Richards, in support of the demurrer, cited

Dumsday v. Hughes, 3 B. & P. 453. But the court bement, the court permitted him ing of opinion that it sufficiently appeared from the whole to withdraw his demurrer

count how the demandant claimed to be heir-Richards and plead de

prayed leave to withdraw his demurrer and plead de novo.

After argu

novo.

Taddy, Serjeant, for the demandant, submitted that amendments are now never allowed in real actions (a); and he referred to Charlwood v. Morgan, 1 New Rep. 64, where the court refused to allow the demandant in a writ of right to amend the mistake of a christian name in the count, or to discontinue the suit, though an affidavit accounting for the mistake was produced: and to Baylis v. Manning, 1 New Rep. 233, where the court likewise refused to permit the count in a writ of right to be amended by introducing an additional step in the descent, though it was sworn that the mistake had arisen from the demandant having been misinformed in the country where inquiry had been made respecting the title, and that the demandant would be barred unless the amendment were allowed.

Per Curiam.—All the cases on the subject of amendments in writs of right apply to amendments sought on the part of the demandant; and the principle upon which they have almost invariably been refused is this, that the court

(a) See the judgments of Park and Vaughan, JJ., in Miller v.

Miller, ante, pp. 121, 122.

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